In this weeks episode of Winning Isn't Easy: More On ME-CFS & Fibromyalgia - Meeting The Onerous Elimination Period In Your Policy & The Lengths Carriers Will Go To In Order To Deny Your Claim by nationwide ERISA Disability Attorney Nany L. Cavey.
In this weeks episode of Winning Isn't Easy: More On ME-CFS & Fibromyalgia - Meeting The Onerous Elimination Period In Your Policy & The Lengths Carriers Will Go To In Order To Deny Your Claim by nationwide ERISA Disability Attorney Nany L. Cavey.
Hey, I'm Nancy Cavey, a National ERISA and individual disability attorney. Welcome to Winning Isn't Easy. Before we get started, the Florida Bar tells me that I have to tell you that this podcast is not legal advice, but nothing will ever prevent me from giving you an easy to understand overview of the disability insurance world, the games that carriers play, and what you need to know to get the disability benefits you deserve. So off we go. Do you have m e CFS or fibromyalgia? Now, I've talked about this disease or these diseases in other episodes, but they're among the trickiest of illnesses to litigate because they're ambiguous, they're hard to diagnose. U m, they're based on subjective complaints, uh, and this i s w hat carries, quite frankly, hate these types of claims. Today I w ant t o talk about three specific topics. Now, just because this episode is focused on m e, C FS or fibromyalgia doesn't mean that you should just stop listening because these, uh, topics, uh, can relate to other disability claims. It doesn't matter if you have me CFS or fibromyalgia, um, ms. Parkinson's, you name it. Um, these are the types of issues that arise in all disability claims. So first I'm gonna talk about meeting the elimination period in your long term disability policy. If you have every CFS or fibromyalgia. Two, the eight reasons used by disability carriers to justify a claims denial of an me CFS or fibromyalgia disability insurance claim. And the, you really have a psychiatric impairment and not a disability insurance claim based on your me CFS or fibromyalgia game that disability carriers play. Got it. All right, let's take a break for a moment before we get started.
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ERISA Attorney Nancy L. Cavey:Welcome back to A Winning Isn't Easy. The elimination period in your long term disability policy have, if you have me, CFS or fibromyalgia. A common feature of disability insurance policies or plans is a requirement that you satisfy what's called an elimination period before you become eligible for your disability benefits. You aren't paid benefits during this elimination period, but if you don't satisfy the elimination period, you won't get paid any benefits. In fact, your claim will be denied. It is among the first line of defenses for a disability carrier or a plan. What is an elimination period? The length of an elimination period and the nature of the disability, uh, can vary from policy to policy and plan to plan. That's why it's important that I want that you should be reviewing your policy or plan closely. So you have to make both the duration and the disability requirements during the elimination period. Now, some elimination periods can be short as two weeks. Some can be as long as a year during this elimination period. Generally you have to be disabled as that term's defined by your policy or plan. In some instances, that means you have to be totally disabled for the entire elimination period. In other instances, you can be partially disabled and you have to know which it is and for how long before you stop work and apply for benefits. Cuz if you don't understand this and you don't meet the elimination period, you really can't correct it after the fact. So when you're beginning to have problems and you're thinking about going out of work, get the blasted policy and plan and read it. Understand what you have to show. If you have to show that you're totally disabled, you wanna make sure your doctor's gonna support a total disability elimination period for however long that might be. If it says that you ha can be residually disabled, then you need to make sure that your earnings fall below normally 80% of your um, pre uh, disability earnings. And there are some elimination policy provisions that say you have to be totally disabled for a period of time and then you can be residually disabled or you can be residually disabled and then you can be totally disabled so long as it occurs during the elimination period. It's a mishmash and you gotta understand what your particular policy or plan says. So let me give you an example of how this can go down. This is the case of Trans Union versus Lincoln Life. It's a case out of Ohio. Trans Barger was an accounts receivable manager for David Feldman worldwide and she became disabled as a result of fibromyalgia. Her employer's disability policy had an unusually lengthy elimination print that required her to be totally disabled from performing each of the main duties of her occupation for 180 days within a 360 day period. All right, everybody's already starting to probably glaze over with these numbers, but they're going to be important. She applied for disability benefits and it was denied because her medical records didn't establish she was totally disabled. During the elimination period, Lincoln reviewed her medical records, her physical therapy records, they took her statement and while she may have experienced severe and disabling symptoms on some days, on other days she didn't. Um, and that's consistent with the nature of fibromyalgia. So what happened was they actually got the calendar out and they looked at the days, they looked at the medical records, they tried to figure out whether or not, uh, she was consistently, totally disabled. And of course they took her statement to nail down whatever it is they thought was going to be the basis of the denial. Ultimately what happened was the court agreed based on their own review of the medical records, the physical therapy notes and her statement, this was not a well planned out disability claim. So what are the lessons to be learned? I think this case is instructive for a number of reasons. The lessons first learned are one, before you stop work and apply for your benefits, get a copy of your policy or plan and review it cover to cover. Two, understand how long the elimination period is and what you have to prove during the elimination period to establish your entitlement to benefits. Review your medical records to see if the nature of your symptoms and the physical findings confirm, uh, that you're in fact disabled during the elimination break. And if not, postpone the blasted decision to stop work and apply for benefits and clean up your medical records and make sure that you are consulting with an experienced ERISA disability attorney. That attorney will help you develop the strategy to clean up those medical records to prove that you're disabled as defined by the terms of the policy and plan during the elimination period to make sure that all your I are dotted, your Ts are crossed so that you're going to be submitting a winning application. Don't give the carrier a reason to deny the claim. Discipline carriers are in the business of denying benefits and basically Trans Barger gave them the reasons to deny the claim on a silver platter. You've gotta understand the terms of the policy of the plan, the length of the elimination period, what you have to prove in terms of disability during that, that elimination period. Otherwise you can lose before you get out of the gate. Don't be a trans consult with an experienced ERISA disability attorney. Got it. Let's take a break. Welcome back to Winning Isn't Easy, The eight reasons used by disability carriers to justify a claims denial of an me CFS or fibromyalgia disability insurance claim. Disability insurance carriers like First Unum have a laundry list of defenses that they commonly raise in claims involving chronic fatigue syndrome or me cfs. They employ a cadre of medical peer review providers to create these defenses for them. I call these medical providers Liar for hire. There's big money for these liars for hires to be made in providing opinions and big money saved by disability carriers or plans when they no longer have to pay your disability benefits. So let's talk a moment about the role of liar for hire medical peer review providers and how they create reasons to justify a claims denial. Disability carriers or plans. Always hope at some point that the treating physician no longer supports your claim and when that doesn't work or the definition of disability changes or the carrier is just simply tired of cutting a check, the games begin. The carrier's gonna assign your file to a nurse case manager or a peer review provider to determine your correct and accurate restrictions limitations so that they can justify claims denial. Doesn't matter what your doctor has to say, the medical providers are either on site physicians employed by disability carriers. In other words doctors who can't make it in the practice of medicine or our medical providers who have signed up with disability review companies to supplement their income to help pay for their malpractice insurance or their next big vacation to Italy or their Lamborghini. Either way, they're generally nothing more than higher guns. That's why I call them liar for higher medical re review providers. Now, it's not uncommon at some point for this hired gun to contact your treating physician to seek a better understanding of your doctor's medical opinions, to persuade them to change the restrictions of limitations so that the carrier can take the physician that you are capable of working and we don't have to pay you any more in and in and in. Okay, so what are the eight common reasons for denial? Number one, no correlating findings. Medical reviewers will criticize the treating physicians records on the basis that there's at absence of correlating findings or studies that substantiate your reported complaints or physical exam findings. Now that's code word for, I've just cherry picked your medical records. I've ignored the objective findings that explain are consistent with the disabling symptoms. I'm just gonna ignore those because they don't help me justify this. Claims denial, denial. Reason number two, an absence of functional impairment. That's reason always amazes me. Look at your disability policy. Do you see the functional impairment as the definition of disability? Rarely and rarely do you even see a blasted definition of functional impairment in the denial letter cuz they don't really know what it is other than it's a made up term that they use to deny claims. Does the peer review doctor ever explain the standard that they're applying and determining whether or not there is a functional impairment? Rarely another game the carriers play by creating this policy term that doesn't exist. Denial. Reason number three, unremarkable lab findings or diagnostic studies. Now, peer review finding, uh, physicians will often equate normal laboratory findings or diagnostic studies as evidence that there isn't any impairment and it's not uncommon for there to be negative lab work or diagnostic findings in the case of me, c Fs, uh, or other diseases. These medical conditions generally can't be established through objective medical evidence other than a physical examination that might show the, uh, the appropriate number of tender points and the peer review providers know that, but that doesn't prevent them from hanging their hat on the lab work or the diagnostic studies as a reason to justify claims denial, denial. Reason number four, there is medical improvement. So on the flip side, the medical reviewer is gonna look at your medical records and they're looking for comments like, um, the patient reports that they are improved. The patient reports that they are fine, the patient reports that they're doing better. Please, please, please don't use any of those terms when you see the doctor. That's the time to unload on your doctor where all your symptoms and how those symptoms impact your function. But the medical reviewer is going to jump all over those words and conclude that there is improvement. Now, it doesn't matter whether that improvement is temporary or permanent, they're just going to, uh, focus on the word improvement and you're so improved that you could return to work. Now of course, that generally isn't the case, but those words can come back and bite you. So don't use those words. Denial. Reason number five, the level of care is not sufficient cuz your head spinning it. So the medical reviewers often will comment that the lack of escalating care or medication is inconsistent with a reported level of impairment, pain or fatigue. And as a result, you're capable of working. Now that's an argument that I always like to attack by having the physician on appeal address the level or nature of, of the treatment. But I think that that that unfortunately is a common reason that firefi or peer review doctors use to justify a claims denial. Now, of course, they're not the one who ultimately denies the claim. They're the people who are creating the ammunition with which to deny the claim denial. Reason number six, there are no side effects of medication. Now I know that medication for treatment of me cfs, uh, has numerous side effects. So it can impair your functionality. There's Benadryl, Zoloft, Lorazepam, Adderall, Lyrica, um, all sorts of medications that have known and reported side effects and you're probably taking multiple medications. Now, peer review providers are gonna scour your medical records looking for medication side effects. If they don't see any, they're gonna think that there aren't any side effects that would give rise to a level of impairment. Warranting restrictions, limitations, that's not the standard of disability either. And they purposely fail to address the known side effects caused by the combination of these medications. So they'll take silence in your medical records as, uh, as meaning that you have no side effects or that they aren't disabling. So please, if you're having side effects, report them to your physician and make sure that you're noting them on any activity of daily living forms that you're being sent by the disability carrier. Denial number seven, there's no objective evidence of the diagnosis. And of course their position is this is all subjective. And they'll argue that doctors are always relying on the complaints of patients regarding their opinions about the diagnosis and the restrictions. Limitations. That's just the nature of these types of medical conditions. It doesn't matter if it's me, c f s, fibromyalgia, migraines, mental health issues, if that was the criteria for disability, nobody would be entitled to their disability benefits cuz there's generally not objective evidence to confirm these diagnosis. But I will tell you the courts across the United States have repeatedly criticized and reversed denials based on a claim, lack of, uh, objective basis for the diagnosis. Nonetheless, if there is an objective basis, I wanna see it, your medical records. If there are diagnostic studies or physical exam results that correlate with your complaints, we want the doctor to comment on those and denial. Reason number eight, there's no objective evidence of the restrictions limitations and your treating physician is improperly relying on your subjective complaints and therefore he's not believable and neither are you. Now this defense has some traction with some courts. They wanna see an objective basis for the restrictions and limitations. Courts uphold these types of denials and I often recommend a functional capacity evaluation or a cardiopulmonary exercise test or comprehensive neuropsychological testing in the A case of cognitive impairment course will recognize these tests as objective basis for the assignment of restrictions and limitations. So what should you do if your claim has been denied based on one of these eight reasons? Now you need to understand if this is an a risk case, you'll only have 180 days in which to file an appeal. The appeal is the trial of your case and you should be taking on every one of the purported reasons for your claim denial. In my office, we write appeal letters that are 25 to 65 pages long. They're filled with medical evidence, legal evidence, vocational evidence. We send them in as a shock and all appeal. Uh, and we take on all the reasons for the claims denial and even, uh, things that they have missed, uh, in, in terms of their uh, denial. Uh, that may not be, you know, mentioned in the actual denial letter but may be discussed in the adjusting notes. We gotta take'em on cuz that appeal is a trial of the case. Once the uh, appeal process is completed and you've exhausted your administrative remedies, file a lawsuit, you can't add anything new. Now, most lawyers don't understand that they think that this is like any kind of civil litigation and they can hold the best evidence till trial that will destroy your case. So you need to understand that if you get a denial letter for one of these eight reasons or all eight reasons, or even reasons I didn't list, you should be consulting with an experienced ERISA disability attorney to help you file an appeal. Got it? Let's take a break.
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ERISA Attorney Nancy L. Cavey:Welcome back to Winning Isn't Easy. The you really have a psychiatric impairment and not a disability insurance claim based on your me CFS game that disability carriers play. Now, disability carriers like first unit play lots of games in me CFS claims. And one of the games is called you really have a psychiatric impairment. You don't have a disabled visibility claim. Uh, it's all in your head. What do I mean by that? So let me give you the story of ta uh, Ms. Tam, who was a software engineer and she had chronic fatigue, uh, and me cfs. Now this is a case outta California and it is verse versus first Unum. She applied for it. She was paid her short term disability benefits after a carrier IME found that she was severely impaired. The IME noted she was depressed, anxious, and tearful during the ime. And the IME concluded that she had major depression secondary to cfs. She applied for her LTD benefits and made it clear that she was disabled not by her mental health conditions, but from a physical standpoint, which is appropriate. Now, Unum had her claim reviewed by four physicians. One was an occupational medicine doctor, another was an internist, and neither in my view are competent or qualified to evaluate an ME CFS case. Uh, and that unfortunately is a common thing that we see in denials. Now, not withstanding her request, Unum had her case reviewed by a Dr. Cla a, uh, psychiatrist, uh, CLA didn't re actually examined ta. He noted her history of mental health treatment including, um, prescriptions. And he commented that her symptom complaints, particularly fatigue and cognitive dysfunction, were common in psychiatric illnesses. Now, guess what? They're also common in hallmark symptoms of me CFS and fibromyalgia. Uh, Dr. CLA alleged that her infectious disease specialist had made no mention of any psychiatric concerns, conditions, or impairments that was wrong. In fact, the, uh, treated rheumatologist infectious medicine specialist had, um, but you can see this is the beginning of the cherry picking expedition. Uh, CLE disagreed with the medical opinion provided by the short term disability providers, psychiatric ime, and again, this isn't uncommon either where the LT d peer review provider disagrees with the short term disability peer review providers. Now for some unknown reasons, uh, Unum double down on the psychiatric evaluations and used to guide by the name of Stuart Shipko. He's well known in the ERISA world. Just Google him, look at the cases and you'll figure out what's going on. And Shipko of course, did not examine her, but, um, looked at the records and ultimately disagreed with the IME doctor. So CLA and Shop Shipko didn't think that TA was disabled, uh, from a psychiatric standpoint. Um, and, but they never really addressed the the physical aspects of her disability, which is what she had asked to be done. They went off on the, Well, we think it's all in her head analysis of this claim. And of course, Unum denied the claim. Ms. Tam submitted additional testing including neuropsychological testing. So Unum played another game. Uh, they had the file reviewed by a fifth doctor. Dr. Norris, Dr. Norris specializes in family medicine, occupational medicine and aerospace medication medicine, not a rheumatologist, not an infectious medicine doctor. And NOS said, uh, well, you know, so much for those neuropsychological reports, they're not time relevant. And, um, I don't think they're important. And by the way, I'm not really gonna comment on the physical aspects of her disability. So obviously at the end of the day, Unum upholds the denial saying that she could do the duties of her regular occupation. Fortunately, she didn't give up and she filed a lawsuit. And I will tell you that the judge was not impressed with the Unum Playbook denial, noting that not one of the five peer review providers had any experience with her multiple medical conditions. Uh, he noted that CLA and uh, ship code focused on the psychiatric aspects of the claim, even though it wasn't the basis of the claim. And the paper reviewers conduct reviews conducted by the Unum Physicians mischaracterized the evidence. They ignored the evidence and they cherry picked the evidence. Now, the court also criticized Unum's demand that TA submit objective evidence of a medical condition, noting that me CFS is characterized by subjective complaints of fatigue and pain. Um, and the court said, Look, you know, you can't have it, have it both ways. Um, the nature of this disease is one in which there isn't necessarily objective evidence. Uh, and the complaints that she's made are consistent with the nature of the disease. So the judge was not impressed. Uh, the judge also looked at the neuropsychological evaluation, and Unum argued that it wasn't time related because medical records rendered retrospectively should not be ignored. Uh, in other words, um, just because the test, um, happened after the fact isn't a sufficient basis to ignore it. Like Unum had urged Unum said, We're not gonna look at it. It's not time relevant. We don't really care. The judge said, Oh, no, no, no. The test should have been considered in combination with all the medical records. And ultimately the judge was not happy that Unum had challenged Tam's credibility and that Unum had never even bothered to have her undergo an ime. They had spent a lot of money getting five reviews, and quite frankly, the the more legitimate way to deny the claim would've been to send her for a liar, hire, uh, not so independent medical evaluation with a doctor who would give them a guaranteed opinion that either she didn't have me cfs or that the me CFS was not as disabling as claimed, uh, and that her restrictions and limitations weren't consistent, uh, with her, uh, her presentation on, on exam. So this is a good example of the games that disability carriers will play in me CFS claims and other types of claims. Ultimately, the court awarded Ms. Tam her benefits, finding that the testing was valid and a credible measure of her medical conditions. So don't give up if your claim's been denied. Got it. I hope you've enjoyed this weeks' episode of Winning Isn't Easy. If you've enjoyed this episode, consider liking the page, leaving a review, sharing it with your family or friends, and better yet, subscribe to this podcast. That way you're gonna be notified when the next episode comes out. I hope you tune in next week for another insightful episode of Winning Isn't Easy.